GA law Flashcards
GA distinction: what is good vs. valuable consideration?
good: natural duty or moral obligation
vs.
valuable: monetary or marriage
GA distinction: who is a merchant?
someone who deals with the goods in kind OR holds themself as having the special knowledge or skills for the goods involved
GA distinction: types of fraud (3)
*actual fraud: misrepresentation of a material fact is made willfully to deceive or recklessly without knowledge AND the misrepresentation is acted on by the other party
*constructive fraud: misrepresentation of a material fact is made by mistake or innocently AND the misrepresentation is acted on by the other party
*concealment: a direct inquiry is made as to a material fact and the truth is evaded
GA distinction: what conditions are required for a minor to be liable for necessities (2)?
emancipated OR parent/guardian refused to supply sufficient necessities
GA distinction: what are the statutory exceptions to a minor contracting (3)?
*engaged in business/trade and contract in that business/trade
*marriage contract if of lawful age
*indebtedness for a loan for a trust fund for educational purposes
GA distinction: what other types of contracts fall under the statute of frauds (3)?
*promise to pay damages out of an estate
*promise to revive a debt barred by the statute of limitations
*commitment to lend money
GA distinction: when must a landlord mitigate?
only when he accepts a tenant’s surrender OR the tenant successfully terminates the lease
GA distinction: when can attorney’s expenses be recovered?
if the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense
GA distinction: special considerations for an IIED claim
*no bystander recovery: conduct must be directed at P
*physical or pecuniary injury for damage recovery (unless willful or wanton)
GA distinction: when is use of force likely to cause death allowed if reasonably believe it is necessary?
*for self-defense or defense of others
*to prevent/end trespass of habitation
*to prevent commission of a forcible felony
GA distinction: what is conversion?
wrongful assertion of control over property either by
*denying P his rights to the property OR
*asserting control in a manner inconsistent with those rights
GA distinction: what is a public nuisance?
a nuisance that causes damage to everyone who comes in contact with it
GA distinction: who does the Good Samaritan statute cover?
anyone who renders emergency care in good faith
GA distinction: invitees and licensees + duty of care
*invitee: anyone expressly or impliedly invited onto the land (for owner’s benefit) / duty of ordinary care to keep the premises safe
*licensee: anyone permitted to go on land for own interests / duty to avoid willful or wanton injury only
GA distinction: special types of liability for negligence
*NIED if impacted or conduct was malicious
*survivor action
*wrongful death
*loss of consortium
*wrongful pregnancy/conception
GA distinction: still recognized immunity from negligence actions
*inter-spousal
*parental
*charitable
GA distinction: what is the limitation for strict products liability?
a claim can only be brought against the manufacturer and must be made within ten years following the first sale for use/consumption
GA distinction: defamacasts
an owner, operator, or licensee for a broadcasting station can be held liable for defamation under a negligence standard (unless made by a political candidate)
GA distinctions: life tenant’s duties
*duty to pay taxes and maintenance expenses
*duty not to commit waste
GA distinctions: what is the result of a life tenant breaching their duties?
forfeiture
GA distinctions: what is the applicable rule against perpetuities?
*GA follows the wait and see approach
*an otherwise invalid transfer is valid if it actually vests without 360 years of its creation
GA distinctions: what is a usufruct?
*a leasehold for less than 5 years
GA distinctions: what is an estate for years?
*a leasehold that lasts more than 5 years
*the tenant owns the property
GA distinctions: what notice is required to end a tenancy at will?
*landlord must give 60 days’ notice
*tenant must give 30 days’ notice
GA distinctions: what are the rules regarding a security deposit for a leasehold?
*landlord must deposit into an escrow account or keep in a surety bond with the superior court clerk
*landlord must provide a list of damages within 3 business days of the tenant vacating the property
tenant has 5 business days to dispute any damages
*intentionally retaining the deposit will result in liability for triple the amount of the deposit and attorney’s fees
GA distinctions: explain caveat emptor
*no implied warranty of fitness or suitability
*can only recover for hidden defects the buyer could not have reasonably known about but the seller could have
GA distinctions: elements of tortious interference with business relations
*D acted improperly with no privilege
*D acted purposefully and maliciously to hurt P
*D persuaded a third party to not begin or continue a business relationship with P
*P suffered financial fiscal injury
GA distinctions: for what four things must a cotenant pay other cotenants?
*waste
*exclusive use
*rent from leasing
*precluding others from use
GA distinctions: requirement to show possession is hostile
good faith belief of legal right to possession
GA distinctions: requirements for liquidated damages to be acceptable
*actual damages are hard or impossible to estimate
*the damages are intended to be compensatory and not punitive
*the amount is reasonable
GA distinctions: period of adverse possession or easement by prescription
*20 years for adverse possession without color of title
*20 years for easement over wild land
*7 years for easement over developed land
GA distinctions: additional requirement for unilateral mistake
the party seeking rescission was not negligent
GA distinctions: when are consequential damages allowed?
only if they can be traced solely to the breach or capable of exact computation
GA distinctions: over what types of cases may superior courts exercise subject matter jurisdiction?
*any civil or criminal case
*exclusively over felony cases
*appeals from magistrate or probate court
GA distinctions: over what types of cases may state courts exercise subject matter jurisdiction?
any misdemeanor or civil case, unless the superior court has exclusive jurisdiction
GA distinctions: over what types of cases may probate courts exercise subject matter jurisdiction?
*exclusively over will probate, controversies over will administration, appointment of guardians and conservators
*miscellaneous related to government duties
GA distinctions: over what types of cases may magistrate courts exercise subject matter jurisdiction?
*issuance of warrants
*civil matters less than $15k
GA distinctions: time limit for service
within 5 days of filing the complaint
GA distinctions: a county court has proper venue where
*the defendant resides
*long-arm statute: a substantial part of the business was transacted, the event occurred, or the property is located
GA distinctions: courts can exercise PJ under the long-arm statute when a nonresident:
*transacts any business in GA
*commits a tort in GA
*causes an injury in GA if regularly does business here, engages in a persistent course of conduct here, or derives substantial revenue from goods or services here
*owns, uses, or possesses real property in GA
*maintains a matrimonial domicile here when domestic relations case commenced (or lived in GA prior to commencement)
*is under GA court order for domestic relations support
GA distinctions: a county court has proper venue for corporate cases where
*the corporation has a registered office
*a contract is to be performed or to be made (if have office and does business in county)
*a tort action originated (if have office and does business in county)
GA distinctions: when are specific acts allowed as character evidence?
*character is an essential element of the charge/claim
*a criminal defendant testifies to their own character
*cross-examination
GA distinctions: what is the physician’s shield?
a physician, hospital, or healthcare facility does not have to release a patient’s information unless authorized by the patient, required by court order, or the patient has placed the nature and extent of injuries at issue
GA distinctions: when is past sexual conduct admissible in a criminal case?
*the past behavior directly involved the accused AND
*the evidence supports an inference the accused could have reasonably believed the victim consented
GA distinctions: exception to hearsay
a child under 16 is describing sexual contact or physical abuse (must provide notice, have the child testify, and give chance to cross-examine listener)
for advertising legal services, a statement is misleading when it
*is a material misrepresentation or omission
*is likely to create unjustified expectations about results
*compares lawyer’s services to another’s (unless it can be substantiated)
*fails to include the name of at least one lawyer responsible for content
*contains contingency fee information without a conspicuous disclaimer about collection (when and how)
*contains the language “no fee unless you when or collect” without further explanation
a trade name is allowed as a firm name as long as it
*doesn’t imply a connection with a government or charitable agency
*contains the name of at least one lawyer practicing in the firm
*otherwise complies with advertising rules
factors impacting the reasonableness of a fee
*preclusion from other employment
*lawyer’s expertise
*time and labor
*customary fees in the community
*amount sought
*results obtained
*difficulty of the case
*skill required
what are the steps required for withdrawing from representation
*notice to client
*opportunity to obtain new counsel
*return of any documents, property, fees, etc.
factors implicating competence
*nature of the matter
*experience of the lawyer
*training in the particular field
*study that can be devoted to the matter
options for a lawyer who lacks competence
*associate with competent counsel
*become competent without unreasonable delay
*decline representation
when is there a conflict of interest with a current client?
*direct adversity
*material limitation
is informed consent allowed for conflicts between a prospective and current client?
yes, unless
*the law prohibits it
*one is asserting a claim against the other in the same or substantially related proceeding
*lawyer is not reasonably likely to provide adequate representation
requirements for notice before obtaining informed consent in writing
*consulted with lawyer in a manner reasonably sufficient to allow the client to appreciate the significance of the situation
*received written information about the material risks and alternatives
*given opportunity to consult with independent counsel
when is there a conflict of interest with a former client?
*representation in the same or a substantially related matter
*interests are materially adverse to the former client’s interests
when must in-house counsel explain that they represent the organization?
when they know or should know the organization’s interests are materially adverse
elements for creating a will
*person over 14
*of sound mind
*creates a writing
*signed
*in the presence of two witnesses
who can recover a year’s support?
*spouse
*unmarried child under 18
may a spouse or children married or born after a will is created receive a gift under a will in which they are not mentioned?
yes
*spouse receives intestate share from residue
*exclusion of children presumed to be unintentional (so take from residue unless have gift to children but specific names excluded)
requirements for ceremonial marriage
*license: issued by probate court and returned within 30 d of ceremony
*solemnization: exchange of contractual promises
requirements for common law marriage
*entered into before 1997
*present intent to be married
*cohabitation
*hold themselves out as married
a marriage is void if
*either party has a prior existing marriage
*the parties are too closely related
*either party is mentally incapacitated (unable to understand the marriage contract)
a marriage is voidable if
*either party is under 17 (and no cohabitation once turn 17)
*either party was intoxicated (no capacity to contract)
*either party used fraud or misrepresentation to induce the other into marriage
*either party used duress, coercion, or force
available resources following an annulment
*equitable distribution of property
*child support
*child custody
defenses to annulment
*if void, denying the fact that makes the marriage void
*if voidable, equitable defenses like unclean hands and laches
requirements for a divorce based on no fault
*the marriage is irretrievably broken
*no cohabitation
*there is no chance of reconciliation
types of fault for divorce
*adultery
*desertion
*conviction for moral turpitude crime
*habitual intoxication or drug addiction
*cruel treatment
*incurable mental illness
*h
defenses to fault-based divorce
*collusion
*consent
*like conduct
*condonation (forgiveness then cohabitation)
what is the rule that applies when property is both marital and separate property
source of funds rule
how is alimony awarded?
based on each spouse’s needs and ability to pay
how is child support calculated?
based on the income shares model, where the incomes are combined and according to the chart, the percentage of the paying parent’s contribution to that income is used to determine the amount
who has jurisdiction to decide child custody under the UCCJEA?
*child’s home state: where lived for past six months
*where the child lived within the six past months and one parent remains
*where the child has significant connnections
GA distinctions: when does the 5A privilege apply to nontestimonial evidence?
a defendant may be compelled to submit to an act that produces incriminating evidence but cannot be compelled to perform an incriminating act
GA distinctions: a statement is not voluntary if
it is induced by the slightest hope of benefit or remotest fear of injury
GA distinctions: timing for arraignment
D must be brought before a judge within 72 hours of arrest
GA distinctions: when is D entitled to bail?
*if a case is not brought before a grand jury within 90 d of arrest for non-capital offenses
*bail should be granted regardless of risk
GA distinctions: factors to consider in initially granting bail
*flight risk
*threat to others
*commission of felony while trial pending
*intimidation of witnesses or obstruction of justice
GA distinctions: general statute of limitations for crimes
*felony: 4 years
*misdemeanor: 2 years
GA distinctions: elements for ex parte temporary restraining order
*irreparable and immediate harm would occur before a preliminary injunction hearing could be held
*certification that the attorney tried to provide notice and why notice is not required
GA distinctions: elements for preliminary injunction
*substantial likelihood the moving party would prevail on the merits
*substantial threat the movant would suffer irreparable harm if not granted
*threat of harm to the movant outweighs the threat to the non-movant
*granting the injunction will not disserve the public interests
GA distinctions: elements of specific performance
*contract
*with sufficiently certain terms
*any conditions are satisfied or excused
*damages are inadequate
*relief is equitable
*enforcement is feasible
GA distinctions: when is an employee subject to a covenant not to compete
*customarily and regularly solicits customers
*customarily and regularly engaged in making sales or obtaining orders or contracts
*performs managerial duties
*performs the duties of a key employee or professional
GA distinctions: factors for a valid covenant not to compete
*geographic area: where conduct business if total area reasonable or list of specific competitors
*duration: 2 years for employees, 5 years or time of payments to seller for owner of business, 3 years for everything else
*scope: good faith estimate based on type of business
GA distinctions: grounds for rescission of contract
*fraud
*unilateral mistake
*frustration of purpose
*agreement to rescind
GA distinction: timing for voluntary dismissal
before first witness sworn in
